Civil Asset Forfeiture

Will a Trump Administration's Support for Police Taking Citizens' Property Trigger Needed Reforms?

Sen. Sessions' endorsement of civil forfeiture gets public criticism.


Jeff Sessions
Michael Reynolds/EPA/Newscom

Over the holiday weekend, conservative pundit George Will (who abandoned the Republican Party over the summer due to Donald Trump's ascension) took aim at Trump's attorney general nominee, Sen. Jeff Sessions (R-Ala.).

The actual targets of Will's concern are federal civil asset forfeiture programs, the systems by which law enforcement agencies are able to seize and keep citizens' property, often without having to prove they've committed a crime. Will is no newcomer in critiquing the awfulness of civil forfeiture. He's familiar with the attorneys of the Institute of Justice, who have been fighting this abuse for years, and wrote about the constitutional violations of civil seizure back in 2012.

Will targeted Sessions over the senator's open support for asset forfeiture and willingness to magically transform suspicion into guilt in order to keep the revenue rolling into the pockets of law enforcement agencies:

At a 2015 Senate Judiciary Committee hearing on forfeiture abuses, one senator said "taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong," and neither is law enforcement enriching itself from this. In the manner of the man for whom he soon will work, this senator asserted an unverifiable number: "95 percent" of forfeitures involve people who have "done nothing in their lives but sell dope." This senator said it should not be more difficult for "government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit." In seizing property suspected of involvement in a crime, government "should not have a burden of proof higher than in a normal civil case."

Sessions' contentions that these people affected are all drug dealers and that forfeitures are handled as a "normal civil case" are both wildly off, as Will explains. Governments deliberately make the process of fighting forfeiture as convoluted, bureaucratic, and difficult as possible to make it harder for citizens to get their stuff back, even if they're innocent. And because it's a civil process, citizens don't have a guaranteed right to an attorney, which means they often have to pay lawyers just for the chance to get their property back.

That hearing from last year was connected to an effort by several senators (including Sen. Rand Paul) to push forward a bill to stop the federal misuse of civil forfeiture. A Sessions nomination suggests an administration not necessarily open to reform. The Wall Street Journal today in an op-ed also worries about Sessions' positions on forfeiture (while defending everything else Sessions believes):

The all-too-common practice allows law enforcement to take private property without due process and has become a cash cow for state and local police and prosecutors. Under a federal program called "equitable sharing," local law enforcement can team up with federal authorities to seize property in exchange for 80% of the proceeds.

Assets are often seized—and never returned—without any judicial process or court supervision. Unlike criminal forfeiture, civil forfeiture doesn't require a criminal conviction or even charges. According to the Virginia-based Institute for Justice, which tracks forfeitures, 13% of all forfeitures done by the Justice Department between 1997 and 2013 were in criminal cases while 87% were civil forfeitures. And 88% of those forfeitures were done by an administrative agency, not a court.

It would be interesting if the concerns about Trump's various cabinet and leadership nominees focused on these kind of abuses, but let's not hold our breath here. The reality is that civil asset forfeiture abuses are a non-partisan consequence of expanding law enforcement power. Law enforcement and government agencies love forfeiture and it has everything to do with getting that money and nothing to do with which party is in power. There's been plenty of asset forfeiture abuse in the Obama administration, even with some very, very modest reforms by former Attorney General Eric Holder. Current Attorney General Loretta Lynch loves it, and it wasn't a pack of rightwing conservatives who oversaw the federal raiding of, a site for male escorts, obviously for the purpose of seizing all its assets.

As much as authorities may love civil forfeiture, we know from polls that citizens are massively opposed, but only when they understand what it is and that it happens. In that sense, Trump's unpopularity despite his victory could perhaps give more public attention to this abuse of government power. It's a shame that after all this time it might be what it takes.

More Reason on asset forfeiture here.